People v. Johnson

4 Mich. App. 205 (1966) 144 N.W.2d 646

PEOPLE
v.
JOHNSON.

Docket No. 855.

Michigan Court of Appeals.

Decided August 5, 1966. Opinion filed September 13, 1966.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Samuel H. Olsen, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, Luvenia D. Dockett, Assistant Prosecuting Attorney, for the people.

Carolyn Florescu, for defendant.

T.G. KAVANAGH, J.

The defendant was convicted by the court sitting without a jury of the crime of breaking and entering a building in the nighttime.^[1]

The appeal asserts that there was not sufficient evidence as a matter of law to support the conviction.

The evidence against the defendant was slight. He was arrested at the scene of the crime by police officers who were responding to a report of a breakin at a gasoline station. He was apprehended behind a sign in the rear of the gasoline station. The policeman testified that the defendant was in a stooped position when arrested. A screwdriver subsequently identified as having been taken from the station was found on the ground near him. His explanation of his presence at that time and place was variously that he had been drinking and had felt sick to his stomach and had regurgitated and that he had to urinate. No evidence of either action was found by the police officer. No stolen property or tools appropriate to the break-in were found in his possession.

The only criminating evidence adduced was the defendant's presence at the scene of the crime and his activities which the police regarded as suspicious. His explanation was that he lived next door to the gasoline station and no evidence was introduced to show he did not. His exculpatory statements, even if regarded as false, while they might show a consciousness of guilt are no substantive evidence of it. See United States v. McConney (CA 2, 1964), 329 F2d 467.

We find no evidence in the record which supports a conclusion that negatives every reasonable theory consistent with the defendant's innocence. See People v. Spann (1966), 3 Mich. App. 444, and the cases cited therein. We perceive this to be the measure of guilt beyond a reasonable doubt since the cases of Hall v. People (1878), 39 Mich. 717; and People v. Millard (1884), 53 Mich. 63.

Reversed, without new trial.

LESINSKI, C.J., and RASHID, J., concurred.

NOTES

[1] CL 1948, § 750.110 (Stat Ann 1962 Rev § 28.305).